FILED

United States Court of Appeals

Tenth Circuit

February 24, 2012

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 10-1499

SALVADOR MENDOZA-LOPEZ, also

known as Ramon Hernandez, also known

as Ramon Chavez-Gomez, also known as

Ramon Ramirez-Mendosa, also known as

Salvador Mendoza, also known as

Salvadore Mendoza-Lopez,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 1:10-CR-00011-MSK-1)

O. Dean Sanderford, Research and Writing Specialist (Raymond P. Moore,

Federal Public Defender, Brian R. Leedy, Assistant Federal Public Defender, and

Barbara L. Costa, Research and Writing Specialist, on the brief), Denver,

Colorado, for Defendant - Appellant.

Andrew A. Vogt, Assistant United States Attorney (John F. Walsh, United States

Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.
I. Introduction

Salvador Mendoza-Lopez appeals his sentence, arguing the district court

denied him his right of allocution. Applying the plain error standard of review,

this court concludes the district court erred by inviting Mendoza-Lopez to speak

only with respect to where within the Guidelines range the court should sentence

him. This error, however, did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings. Accordingly, exercising jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms the sentence imposed

by the district court. 

II. Background

Mendoza-Lopez pleaded guilty to one count of unlawful re-entry after

removal. 8 U.S.C. § 1326(a). The Presentence Investigation Report (“PSR”)

calculated Mendoza-Lopez’s total offense level at twenty-one and placed him in

criminal history category V, resulting in an advisory Guidelines range of seventy

to eighty-seven months. The PSR recommended a sentence of seventy months.

Mendoza-Lopez filed motions for departure and variance, seeking a

sentence of forty months. He argued he qualified for a downward departure under

U.S.S.G. § 4A1.3(b)(1) because criminal history category V over-represented the

seriousness of his prior record. He argued he qualified for a variance primarily

because a sixteen-level increase in his base offense level pursuant to U.S.S.G.

§ 2L1.2 was unwarranted as it was not the product of the Sentencing

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Commission’s expertise and institutional role. The PSR disagreed with MendozaLopez’s request for a downward departure but took no position on whether a

variance was warranted. At sentencing, Mendoza-Lopez’s counsel reiterated at

length his arguments for a departure and variance. The district court, in a lengthy

statement from the bench, denied both motions and accepted the PSR’s

recommended Guidelines range of seventy to eighty-seven months.

Immediately thereafter the court said: “It’s the Court[’s] intention to

sentence within that Guideline range.” It then invited both Mendoza-Lopez’s

counsel, and Mendoza-Lopez himself to address “where within that range this

Court should sentence.” Following these statements, Mendoza-Lopez’s counsel

reiterated his arguments for a departure and variance, asserting that an

individualized analysis of the 18 U.S.C. § 3553(a) factors supported a sentence

below the advisory Guidelines range. The court assured Mendoza-Lopez’s

counsel it had taken into account the § 3553(a) factors and would continue to do

so “when it now imposes sentence within the Guideline range.” The court then

addressed Mendoza-Lopez, saying “you have the opportunity to address the Court

now if you wish.” Mendoza-Lopez said: “I would simply like to say that I

apologize, I’m sorry for having come back. I’d like you to know that I have small

children in Mexico who need me to support them by working. That’s really all.”

After Mendoza-Lopez’s allocution, the government argued that a sentence

within the advisory Guidelines range was appropriate and the PSR’s

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recommendation of seventy months was also appropriate. The government

ultimately requested a sentence at the bottom of the Guidelines range. The

district court sentenced Mendoza-Lopez to seventy months. The court stated that,

in arriving at this sentence, it considered Mendoza-Lopez’s previous removals

and illegal reentries and other criminal offenses, the argument his counsel made

for a variance, and that it was “sympathetic with the fact that the defendant has a

wife and two small children that very much need him back home.”

Mendoza-Lopez appeals his sentence, arguing the district court violated his

right of allocution by definitively announcing its intention to impose a sentence

within the advisory Guidelines range before inviting him to speak. He argues the

district court effectively communicated to him that he would not have a

meaningful opportunity to persuade the district court to consider a belowGuidelines sentence.

III. Analysis

A. Standard of Review

Both parties recognize that because Mendoza-Lopez did not object to the

district court’s alleged denial of his right of allocution, this court reviews for

plain error. See United States v. Rausch, 638 F.3d 1296, 1299 & n.1 (10th Cir.

2011) (adopting the plain error standard of review for alleged violations of the

right of allocution when the defendant failed to object below). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects the defendant’s

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substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 1299 (quotation and alteration

omitted).

B. Discussion 

Before imposing sentence, the sentencing court must “address the defendant

personally in order to permit the defendant to speak or present any information to

mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). This court has held the

sentencing court “actually must take steps to communicate effectively to the

defendant, that, through his statement, he has a meaningful opportunity to

influence the sentence.” United States v. Landeros-Lopez, 615 F. 3d 1260, 1266,

1268 (10th Cir. 2010) (quotation omitted). “Belatedly inviting the defendant to

speak after announcing his sentence does not satisfy this standard, even if the

sentence has yet to be formally imposed.” Id. at 1266. In Landeros-Lopez, prior

to inviting the defendant to allocute, the district court announced “it is and will be

the judgment of this Court that the defendant . . . be imprisoned for a term of 115

months.” Id. at 1265. The court also stated the defendant “shall be placed on

supervised release for a term of five years.” Id. This court noted that after

making “these seemingly conclusive pronouncements, the court then described the

conditions of confinement and supervised release, informed Landeros of his right

to appeal, and stated: ‘That is the sentence the Court intends to impose in this

matter. Does the defendant have anything to say before the Court imposes this

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sentence?’” Id. The defendant proceeded to allocute and the court filed a

judgment imposing the sentence several days later. Id. at 1265-66. We held that

the district court violated the defendant’s right of allocution: 

By definitively announcing Landeros’ sentence before providing him

with an opportunity to speak on his own behalf, the district court

prematurely adjudged his sentence. The court’s conclusive

statements effectively communicated to Landeros that his sentence

had already been determined, and that he would not have a

meaningful opportunity to influence that sentence through his

statements to the court.

Id. at 1268. We also concluded “the court’s later remark that it merely ‘intended’

to impose this sentence did not cure its initial error” because this statement

“failed to indicate that the court would genuinely reconsider the adjudged

sentence in light of any remarks made by the defendant.” Id. 

This court has also held that a defendant’s right of allocution is violated if

a district court indicates it is unwilling to listen to the statements or information a

defendant wishes to offer in mitigation of his sentence. United States v. Jarvi,

537 F.3d 1256, 1261-62 (10th Cir. 2008). In Jarvi, the defendant filed a written

pro se motion prior to sentencing, objecting to several recommendations made in

the PSR which served to substantially increase his offense level. Id. at 1258. The

district court, however, refused to consider the pro se motion because the

defendant was represented by counsel. Id. At sentencing the court addressed the

defendant, stating: “Keeping in mind that I’m not going to consider these pro se

objections that you’ve made to the presentence report, are there any other aspects

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of the presentence report that you would object to?” Id. at 1259 (alteration

omitted). The defendant then twice attempted to present arguments made in his

pro se motion. Id. Both times, however, the district court told the defendant it

was “not going to listen” to those arguments. Id. This court noted that a

defendant’s right of allocution is “a broad right to ‘present any information to

mitigate the sentence.’” Id. at 1262 (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)). 

We observed that both times the defendant “attempted to speak to one of the

issues he thought most relevant to his sentence,” the district court told him it was

not going to listen to arguments on that issue. Id. at 1261. The defendant,

however, “evidently regarded the arguments in his motion as his best case for

mitigating [his] sentence.” Id. at 1262. Thus, “[b]y ordering him not to make

those arguments, the [district court] . . . failed to ‘permit the defendant to speak

or present any information to mitigate the sentence,’” and therefore violated the

defendant’s right of allocution. Id. at 1261-62 (quoting Fed. R. Crim. P.

32(i)(4)(A)(ii)).

In support of this holding, we pointed to a Ninth Circuit case, which held

that a defendant’s right of allocution was denied “when the court invited him to

speak, but only as to ‘what would be the appropriate sentence within the

Guidelines range.’” Id. at 1262 (alteration omitted) (quoting United States v.

Sarno, 73 F.3d 1470, 1503-04 (9th Cir. 1995)). We stated: “If that was an error

when the Sentencing Guidelines were mandatory, it is even more important now

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that the Guidelines are advisory to allow the defendant an opportunity to argue for

a variance from the Guidelines range.” Id.

In this case, the court announced its “intention to sentence within [the]

Guideline range” before it invited Mendoza-Lopez to allocute. Mendoza-Lopez

argues that this statement, standing alone, is sufficient for this court to conclude

the district court abridged his right of allocution. This statement is not conclusive

like those made in Landeros-Lopez, where the court announced “it is and will be

the judgment of this Court that the defendant . . . be imprisoned for a term of 115

months,” and the defendant “shall be placed on supervised release for a term of

five years.” 615 F.3d at 1265. Thus, Mendoza-Lopez has not met his burden of

showing the district court plainly erred by making this narrow statement of

“intention.” He has not shown the court, by its mere statement of intention,

prematurely adjudged his sentence or communicated to him his sentence was

predetermined and he had no meaningful opportunity to influence that sentence

through his statements to the court. Indeed, in Landeros-Lopez, this court

suggested it is not error for a district court to announce its mere intention to

impose a particular sentence. Id. at 1268 (considering whether, despite the

court’s “conclusive statements” regarding sentence, its “later remark that it

merely ‘intended’ to impose this sentence” cured the court’s original error).

The district court did plainly err, however, by inviting Mendoza-Lopez to

address only “where within [the Guidelines] range this Court should sentence.” 

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This statement indicates the court was not willing to listen to any statements or

information Mendoza-Lopez might wish to offer in support of a sentence below

the advisory Guidelines range. Thus, the court violated Mendoza-Lopez’s right of

allocution by failing to permit him to “speak or present any information to

mitigate the sentence.” See Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added). 

Moreover, this error is plain in light of Jarvi. See United States v. Thornburgh,

645 F.3d 1197, 1208 (10th Cir. 2011) (“An error is plain if it is clear or obvious

under current, well-settled law.” (quotation omitted)).

With regard to the third prong of the plain error test, our prior precedent

appears to “presume prejudice for allocution errors.” Rausch, 638 F.3d at 1301

n.2. Even presuming Mendoza-Lopez’s substantial rights were affected, however,

he failed to show the district court’s error seriously affected the fairness,

integrity, or public reputation of judicial proceedings. Id. (“We note . . . that

establishing prejudice does not necessarily mean that the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings. Indeed, the

third and fourth prongs of plain-error review are independent inquiries.”

(quotation omitted)). This court has stated that denial of the right of allocution

“‘is not a fundamental defect which inherently results in a complete miscarriage

of justice, nor an omission inconsistent with the rudimentary demands of fair

procedure.’” Id. at 1301 (emphasis added) (quoting Hill v. United States, 368

U.S. 424, 428 (1962)). In determining whether the fourth prong of the plain error

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test is met, the seriousness of the error must be examined in the context of the

case as a whole. Johnson v. United States, 520 U.S. 461, 469-70 (1997); see also

United States v. Young, 470 U.S. 1, 16 (1985) (“[E]ach case necessarily turns on

its own facts.” (quotation omitted)). In this case, the district court’s error did not

result in a total denial of Mendoza-Lopez’s right of allocution. The district court

addressed Mendoza-Lopez personally, inviting him to speak or present

information to mitigate his sentence. Mendoza-Lopez did so; he apologized for

committing the offense and said that he had small children in Mexico who relied

on him for support. Moreover, the record shows the court considered this

mitigating information in arriving at Mendoza-Lopez’s ultimate sentence of

seventy months. On these particular facts, we are satisfied the district court’s

error in inviting Mendoza-Lopez to address only where within the advisory

Guidelines range the court should sentence him does not seriously affect the

fairness, integrity, or public reputation of the sentencing proceeding.

This case is distinguishable from both Landeros-Lopez and Jarvi, where

this court remanded for resentencing after concluding the district court violated

the defendant’s right of allocution. Unlike in Landeros-Lopez, the district court

in this case did not conclusively adjudge Mendoza-Lopez’s sentence prior to

allocution so as to leave the impression anything Mendoza-Lopez said would be

disregarded out of hand. See Landeros-Lopez, 615 F.3d at 1267-68. Further,

while similar to the error in Jarvi, the error in this case does not warrant remand

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for resentencing. In Jarvi, this court did not decide whether the fourth prong of

the plain error test was met because we did not apply the plain error standard of

review. See Rausch, 638 F.3d at 1299 n.1 (noting that, as of 2011, this court had

not yet expressly adopted a standard of review for alleged violations of the right

of allocution when the defendant failed to object below). Moreover, unlike in

Jarvi, the district court in this case did not expressly forbid Mendoza-Lopez from

speaking or presenting any mitigating information, much less order him not to

make arguments he regarded as his “best case” for mitigating his sentence. See

Jarvi, 537 F.3d at 1261-62. Additionally, in Jarvi, we noted the defendant’s

objections to the PSR’s recommendations regarding his base offense level

essentially went unheard because the district court not only refused to consider

the defendant’s pro se motions but also refused to hear arguments in support of

those objections via the defendant’s allocution. See id. at 1262 (“Mr. Jarvi is

entitled to have considered—at least once—his arguments for mitigation of his

sentence under 18 U.S.C. § 3553(a).”). In contrast, the district court in this case

heard and carefully considered Mendoza-Lopez’s arguments for a downward

departure and variance. 

Our conclusion is also supported by Mendoza-Lopez’s failure to either set

forth what he would have said to the district court prior to sentencing that might

have mitigated his sentence or show some objective basis that would have moved

the trial court to grant a lower sentence. See Rausch, 638 F.3d at 1302; United

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States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009); see also United States

v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006) (“[D]efendants have to show

some basis that would have moved the trial court to grant a lower sentence;

otherwise, it can hardly be said that a miscarriage of justice has occurred.”

(quotation omitted)).

IV. Conclusion 

We are not persuaded the error in this case, when examined in the context

of the record as a whole, was “particularly egregious” or that failure to correct it

would result in a “miscarriage of justice.” See United States v. Gonzalez-Huerta,

403 F.3d 727, 736-37 (10th Cir. 2005). We therefore affirm Mendoza-Lopez’s

sentence.

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